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possession or occupation to constitute an adverse possession, which will, in twenty years, ripen into a title. Gouverneur v. National Ice Co., 57 Hun, 474; 11 N. Y. Sup. 87 (1890).

An annual entry for a short time on uninclosed wild land to cut natural grass on part of it will not, of itself, work disseizin of the owner, and create adverse possession against him. Bazille v. Murray, 40 Minn. 48; 41 N. W. Rep. 238 (1889).

Where, on partition of the land of a decedent, a strip of land of which he had neither title nor possession is included in one of the purparts, the fact that the purchaser of such purpart, while living within the lines of the decedent's land, cuts timber from time to time on such strip, does not give him adverse possession thereof. Olewine v. Messmore, 128 Pa. St. 470; 18 Atl. Rep. 495.

That defendant, under color of title, entered upon platted village lots covered with underbrush, cut, grubbed, and burned the growth so as to completely clear the land, and paid taxes thereon, is sufficient to sustain a finding of disseizin and adverse possession. Costello v. Edson, 44 Minn. 135; 46 N. W. Rep. 299 (1890).

Digging away some of the soil and piling railroad ties on land, when not done under claim of ownership nor by the possessor of a paper title, does not constitute adverse possession, within the meaning of the statute of limitations. Chicago & N. W. Ry. Co. v. Galt, 133 Ill. 657; 23 N. E. Rep. 425 (1890).

Actual dispossession of defendant is not necessary to bar the running of the statute, and an agreement that defendant delivers possession to plaintiff, or consent to abide the judgment for possession, is equivalent to dispossession, and thereupon defendant becomes the tenant of plaintiff, and his possession is no longer adverse. Mabary v. Dollarhide, 98 Mo. 198; 11 S. W. Rep. 611 (1889).

Where one has made a survey of lands, for the purpose of pre-emption, which includes a prior survey by another person, his possession of that part of his survey outside of the former survey will not have the effect of extending such possession within the former survey, though there is no one in actual possession of it.. King v. Hunt (Ky.), 13 S. W. Rep. 214; Am. Dig. 1890, 37.

Where the person claiming title to land did not reside on it, but frequently visited her son, who did live there, and there was constant communication between them, it can not be held that the son's possession was adverse. Dunham v. Townshend, 118 N. Y. 281; 23 N. E. Rep. 367 (1890).

$37. The Possession, How Held-Tenants, Agents, etc. -In this as well as other cases resting upon the familiar principle-whatever a person does by his agents or servants, he does by himself, it is not necessary to show an actual occupancy by a defendant claiming in adverse possession under the statute; it may be by his tenants, agents or servants.'

Elliott v. Dycke, 78 Ala. 150.

§ 38. What Acts of Occupancy are Sufficient. In the absence of statutory enactments prescribing what manner of occupancy is necessary to constitute an adverse possession, such acts as residence upon and cultivation of the lands in question are not in general necessary, especially when the nature of the premises will not admit of it. But in these cases the claim of the party holding the possession must be made apparent by some public acts consistent with his ownership and the notice or use of the lands.'

§ 39. Occupation of Land for Mining and Quarrying Purposes. This principle is well illustrated by the occupancy of land for mining and quarrying purposes, as sufficient to constitute an adverse possession. Although mining and quarrying are less general, but still frequent and important industries, and entitled to the same protection under the law as agriculture, it is no longer an open question that these operations may constitute adverse possession the same as the cultivationof the soil. Where the holding is under a paper title the geographical extent of the possession, it seems, must be governed by the description contained in the paper title.

40. What Acts of Occupancy Have Been Held Sufficient to Constitute an Adverse Possession.-Cultivating or using the land in the ordinary way, fencing and continual use of the land by a claimant not residing upon it, and other acts of like character, have been held sufficient to constitute an adverse possession.

41. What Acts Have Been Held Not Sufficient.-Occasional trespasses by persons avowing an intention to make an adverse claim; disconnected trespasses, such as cutting tim

1 Ewing v. Burnett, 11 Pet. (U. S.) 412; Coleman v. Billings, 89 Ill. 183; Leeper v. Baker, 68 Mo. 400; Stephenson v. Wilson, 50 Wis. 95; 6 N. W. Rep. 240 (1880); Clement v. Perry, 34 Iowa, 567; Brumagin v. Bradshaw, 39 Calif. 24; Door v. School Dist., 4 Ark. 237; Royal v. Lisle, 15 Ga. 545; 60 Am. Dec. 712; Ford v. Wilson, 35 Miss. 490; 72 Am. Dec. 137; Moss v. Scott, 2 Dana (Ky.), 275.

Stephenson v. Wilson, 50 Wis. 95; 6 N. W. Rep. 240 (1880); Nilsau v.

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WHAT ACTS HELD NOT SUFFICIENT.

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ber, stripping bark and the like, however, being continued; ' a mere entry each year for the purpose of cutting grass;' annually occupying a sugar place for the sole purpose of making sugar;" payment of taxes and partial occupation by a co-tenant;* erecting cow pens, ranging cattle and occasionally cutting trees;" annual entries for the purpose of cutting timber, feeding cattle, hunting and fishing, with the cultivation of a truck patch in summer as incidental to other pursuits; use of water of a stream during a period of abundance;' going upon wild land, digging and hunting for corners and boundary lines, driving cattle on the land and employing a party to break it; using the land for the purpose of obtaining wood for fuel or fencing. for a farm in the vicinity under color of title and claim of ownership; repeated cutting of timber on outlands; " clearing land of the timber and allowing it to grow again;" having a wood pile on a vacant lot for twenty years and burying potatoes upon it for six;" digging sand on the land from time to time and selling the same; " using a way open to and occupied by the public for the purpose of getting water;" building a sidewalk on a street adjoining land over which there is such an easement;" fencing the land on three sides;" inclosing land by brush fences or fences made by felling trees lapping one upon another "have been held to be simply occasional or sporadic

1 Williams v. Wallace, 78 N. C. 354; Long v. Young, 28 Ga. 130; Refener v. Bowman, 53 Pa. St. 313; Anderson v. Harvey, 10 Gratt. (Va.) 386; Austin v. Holt, 32 Wis. 478; Washburn v. Cutter, 17 Minn. 361; Rivers v. Thompson, 46 Ala. 633; Parker v. Parker, 1 Allen (Mass.), 245; Slice v. Derrick, 2 Rich. (S. C.) 627.

2 Wheeler v. Spinola, 54 N. Y. 377; Roberts v. Baumgarten, 51 Sup. Ct. (N. Y.) 482.

3 Wilson v. Blake, 53 Vt. 305. 4 McGuiddy v. Ware, 67 Mo. 74. Royal v. Lisle, 15 Ga. 545; 60 Am. Dec. 712.

6 Wheeler v. Winn, 53 Pa. St. 122; see Pullen v. Hopkins, 1 Lea (Tenn.) 741.

1 Anaheim Water Co. v. SemiTropic Water Co., 64 Calif. 185.

10

Brown v. Rose, 55 Iowa, 734.

Scott v. Delany, 87 Ill. 148; see Clement v. Perry, 84 Iowa, 564. 10 Townsend v. Reeves, 44 N. J. L. 525,

11 Parker v. Parker, 1 Allen (Mass.), 245.

12 Miller v. Downing, 54 N. Y. 631. 13 Parker v. Wallis, 60 Md. 15; 45 Am. Rep. 703.

14 O'Neil v. Blodgett, 58 Vt. 213. 15 Knecken v. Voltz, 110 Ill. 264.

16 Morrison v. Chapin, 97 Mass. 72; Pope v. Hamer, 8 Hun (N. Y.), 265; 74 N. Y. 24; see Kerr v. Hitt, 75 Ill. 51.

11 Slater v. Jepherson, 6 Cush. (Mass.) 129: Jackson v. Schoonmaker, 2 Johns. (N. Y.) 229; Hale v. Glidden, 10 N. H. 397; Coburn v. Hollis, 3 Met. (Mass.) 125.

uses of lands and not sufficient to establish an adverse possession.

§ 42. It Must Be Visible and Notorious-A Secret Possession Will Not Do.-Possession, in order to bar a recovery, must be continuous and uninterrupted as well as open, notorious, actual, exclusive and adverse.' Independent of positive statute law such a possession affords a presumption that all the claimants to the land acquiesce in the claim so evidenced and enforced, or that they forbear for some substantial reason to controvert the claim of the possessor or to disturb him in the enjoyment of the premises. Secret possession will not do, as publicity and notoriety are necessary as evidence of notice, and to put those claiming an adverse interest upon inquiry.* A mere occupation is not sufficient, but the possession must be adverse, as seizin and possession are supposed to be co-extensive with the right, and that the possession continues till the party is ousted thereof by an actual possession in another under a claim of right."

§ 43. Continuity of Possession Necessary.-Continuity of possession is also one of the essential requisites to constitute such an adverse possession as will be of efficacy under the statute of limitations. Whenever a party quits the possession the seizin of the true owner is restored, and a subsequent

1 Cook v. Babcock, 11 Cush. (Mass.) 210; Armstrong v. Morrill, 81 U. S. (14 Wall.) 120 (1871); Stevens v. Hollister, 18 Vt. 294 ; Samuel v. Barrowscale, 104 Mass. 207; Clark v. Gilbert. 39 Conn. 97; Doe v. Campbell, 10 Johns. (N. Y.) 477; Cahill v. Palmer, 45 N. Y. 484; Saxton v. Hunt, 20 N. J. L. 487; Calhoun v. Cook, 9 Pa. St. 226; Bartholomew v. Edwards, 1 Houst. (Del.) 17; Unger v. Mooney, 63 Calif. 586; Bracken v. Jones, 63 Tex. 184; Ringo v. Woodruff, 43 Ark. 469; Brown v. Cockrell, 33 Ala. 47; Wilson v. Williams, 52 Miss. 488; Royal v. Lisle, 15 Ga. 545; 60 Am. Dec. 712; Carroll v. Gillion, 33 Ga. 539; Washburn v. Cutter, 17 Minn. 361; Furlong v. Garrett, 44 Wis. 111; Delong v. Mulcher, 47

Iowa, 445; Turney v. Chamberlain,

15 Ill. 271; Horbach v. Miller, 4
Neb. 31; Peterson v. McCulloch, 50
Ind. 35; Humphreys v. Hoffman, 33
Ohio St. 395; Velverton v. Steele, 40
Mich. 538; Malloy v. Bowden, 86
N. C. 251; Ekey v. Inge, 87 Mo. 493;
Beatty v. Mason, 30 Md. 409; Creek-
mur v. Creekmur, 75 Va. 430; Core v.
Faupel. 24 W. Va. 238.

2 Bradstreet v. Huntington, 5 Pet. (U. S.) 502; Blood v. Wood, 1 Met. (Mass.) 528; Ewing v. Burnett, 11 Pet. (U. S.) 53; Armstrong v. Morrill, 31 U. S. (14 Wall.) 120 (1871).

3 Armstrong v. Morrill, 81 U. S. (14 Wall.) 120 (1871); Angell on Limitations, 377; Clark v. Courtney, 5 Pet. (U. S.) 354; McIver v. Ragan, 2 Wheat. (U. S.) 29; Kirk v. Smith, 9 Wheat. (U. S.) 288.

CONTINUITY OF POSSESSION NECESSARY.

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wrongful entry by another constitutes a new disseizin, and it is equally well settled that if the continuity of possession is broken before the expiration of the period of time prescribed by the statute of limitations, an entry within that time destroys the efficacy of all prior possession, so that to gain a title under the statute, a new adverse possession for the time limited must be taken for that purpose.'

Illustrations.

Continuity of possession: One claiming title to land by three years' adverse possession, must show continuous possession for that period; and where the trial court has found upon conflicting evidence, that plaintiff did not maintain such possession, the claim must fail. Gunter v. Meade (Tex.), 14 S. W. Rep. 562; Am. Dig. 1891, 47.

The adverse user of an irrigating ditch, through the lands of another, only during the cropping season, the ditch not being needed at other times, constitutes a continuous adverse user, as the omission to use when not needed does not break the continuity of the user. Hesperia Land & Water Co. v. Rogers, 83 Cal. 10; 23 Pac. Rep. 196 (1890).

Land was deeded by a father to his daughter, but by mistake part of the premises intended to be conveyed was omitted in the description. The daughter took possession of all the tract, and occupied it notoriously and exclusively for several years. Afterward she transferred possession to her husband, under a deed in which existed the same defect of description, but the husband took possession in the belief that there was a perfect title to the whole tract. Held, that the adverse possession was not interrupted. dall v. St. Martin, 42 Minn. 163; 44 N. W. Rep. 525 (1890).

Van

The right of the owner of the title to land to recover possession is not barred by the Alabama statute of twenty years' limitation, unless there has been during the whole of that period the same continuity of possession required to perfect title by adverse possession. Ross v. Goodwin, 88 Ala. 390; 6 So. Rep. 682 (1889).

1 Melvin v. Proprietors, etc., 5 Met. (Mass.) 5; 28 Am. Dec. 384; Armstrong v. Morrill, 81 U. S. (14 Wall.) 120 (1871); Brinsfield v. Carter, 2 Kelly (Ga.), 143; Ringgold v. Malott, 1 H. & Johns. 316; Smith v. Chapin, 31 Conn. 531; Bliss v. Johnson, 94 N. Y. 235; Graft v. Weakland, 34 Pa. St. 308; Read v. Allen, 63 Tex. 154; McMullin v. Erwin, 58 Ga. 427; Saule v. Barlow, 49 Vt. 329; Morse v. Williams, 62 Me. 445; Wickliffe v. Enson, 9 B. Mon. (Ky.) 253; Nixon v. Porter, 38 Miss. 401; Laramore v. Minish, 43 Ga. 282;

Riggs v. Fuller, 54 Ala. 141; Hall v. Gittings, 2 H. & J. (Md.) 112; Core v. Faupel,.24 W. Va. 238; Creekmur v. Creekmur, 75 Va. 430; Malloy v. Bruden, 86 N. C. 251; Ringo v. Woodruff, 43 Ark. 469; Lynde v. Williams, 68 Mo. 365; Thompson v. McLaughlin, 66 Ill. 407; Steeple v. Downing, 60 Ind. 478; Unger v. Mooney, 63 Calif. 586; 49 Am. Rep. 100; Sparrow v. Hovey, 44 Mich. 63; Messer v. Reginniter, 32 Iowa, 312; Horbach v. Miller, 4 Neb. 31; Bracken v. Jones, 63 Tex. 184.

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